P. Sivasubramaniam vs S. Karthikumar and Another

M. Chockalingam, J.—This suit has been filed for the issuance of a Probate in respect of the Last Will and Testament of late N. Savitri

executed on 29-12-1992.

Plaint averments are as follows : The defendants are the son and daughter of late Mrs. N. Savitri. Savitri died on 5-2-1994 at No. 7, Solaiappa

Naicken Street, Madras-7. The testatrix executed her Last Will and Testament on 29-12-1992 at the said address in the presence of two

witnesses, who are well known to the testatrix. Plaintiff is the sole executor appointed under the Will. The testatrix died leaving behind her the

plaintiff-husband, first defendant-son and the second defendant-daughter. The testatrix bequeathed four items of movable properties mentioned in

the Will. Plaintiff undertakes to duly administer the properties and credits of the testatrix. Hence the suit.

2-A. The second defendant filed a written statement alleging that her mother has not executed any Will during her lifetime. Plaintiff is the father of

D2. The testatrix had deposits with various financial institutions including Purasawalkkarn Permanent Fund. The husband of the testatrix, the

plaintiff herein was attending to all these transactions and he used to take the signature of the testatrix in blank papers for the abovementioned

transactions. The plaintiff has made use of those signatures after the demise of Mrs. Savitri. The testatrix was having love and affection towards

D2. The second defendant married a person of her choice with the consent of her mother, which was not liked by the plaintiff. The alleged Will is a

fabricated one. Mrs. Savitri was hale and healthy on 29-12-1992 and hence there is no need for her to execute a Will. The terminal benefits of an

employee is not be queathable under a Will. The alleged attesting witnesses are only friends of the plaintiff. Hence the suit may be dismissed with

costs.

On the above pleadings, the following issues were framed :

1) Whether the Will alleged to have been executed by Savitri dated 29-12-1992 filed along with the suit is true, genuine and valid?

2) Whether the plaintiff is entitled to the issue of probate as asked for ?

3) To what relief the plaintiff is entitled to ?

ISSUES 1 TO 3 :-- The plaintiff has filed this suit seeking for issuance of a probate in respect of the Last Will and Testament executed by

Savitri on 29-12-1992.

The plaintiff has examined himself as P.W. 1. His evidence is that he came to know about the Will which is marked as Ex.P1 only after the death

of his wife viz. Savitri. She passed away on 5-2-1994. His friend Mr. Manmohan produced the Will and showed it to him after her death. At the

time of his wife''s death he was not in Madras. The cause of his wife''s death was heart attack. The defendants who are son and daughter of P.W.

1 were living with him at the time of his wife''s death. His daughter left his house in December, 1992 i.e. prior to his wife''s death without their

knowledge. Their relations with their daughter were not cordial after their daughter left the house. His wife has made some provisions for their

daughter in Ex.P1 Will. Ex.P1 is the Will executed by his wife on 29-12-1992 in the presence of two attesting witnesses. The signatures found in

the Will are that of his wife. Both the attesting witnesses viz., C. R, Manmohan and T. R. Sivasankaran are his friends.

One of the attesting witnesses viz. Mr. R. Manmohan was examined as P.W.2. He would depose that he knew the Will executed by late Savitri.

The signature found in Ex.P1 Will in all the pages is that of late Savitri. He signed in Ex.P1 as the first attestor. Himself and the other attesting

witness Mr. T. R. Sivasankaran were present at the time of execution of Ex.P 1 Will. Both of them signed in Ex.P1 Will in the presence of the

testatrix. Two or three days prior to the execution of Ex.P1 Will the testatrix personally called him for the same. The plaintiff was not present either

when the testatrix called him to be present during the execution of Ex.P1 or during the time of execution of the said Will. When he questioned the

testatrix as to why she is executing the Will, she told him that she was not certain of her health and hence she was executing the Will. She was

healthy at that time. After execution, the testatrix gave the said Will to him for safe custody, telling that if anything happened to her, the said Will has

to be handed over to her husband. He do not know who prepared Ex.P1 Will. About 10 or 12 days after her death, he handed over Ex.P1 which

was in a cover to the plaintiff.

The first defendant has filed a consent affidavit stating that he has no objection for this Court to grant probate of the Will of his deceased mother

Mrs. N. Savitri, to the plaintiff.

The plaintiff has filed this suit seeking for probate alleging that his wife Savitri executed her Last Will and Testament on 29-12-1992 at Madras

in the presence of two witnesses.

Arguing for the plaintiff the learned Counsel would submit that the plaintiff herein is the husband of the testatrix Savitri while the first and second

defendants are their son and daughter respectively; that the testatrix who died on 5-2-1994 has executed Ex.P1 Last Will and Testament on 29-

12-1992 in the presence of two attesting witnesses of whom one is examined as P.W.2; that the testatrix Savitri was employed as Superintendent

in H.R. & C.E. Department, Nungambakkam, Madras; that she died while she was in service; that the plaintiff left for Delhi on 4-2-1994; that he

came to know about the death of his wife on 5-2-1994 when he was away at Nagpur; that the testatrix at the time of execution of the Will had her

husband, the plaintiff herein and two children viz., one son and one daughter the defendants herein; that her daughter Geetha left the house in

December, 1992 without the knowledge of the parents; that after the daughter left the house their relationship with the daughter was strained; that

in order to prove the testament, the plaintiff has examined P.W.2 Mr. R. Manmohan who has categorically deposed that the wife of the plaintiff

Mrs. Savitri signed in Ex.P1 document in the presence of himself and other attesting witness and the attesting witnesses put their signatures in the

document in the presence of late Savitri; that she was hale and healthy and was in good and sound disposing state of mind at the time of execution

of Ex.P1 Will; that from the evidence of P.Ws.1 and 2 it would be clear that the plaintiff was absent at the time of the execution of the testament by

Savitri; that P.W.2 did not inform the execution of the Will by Savitri to her husband the plaintiff herein, only on the request of the testatrix not to

divulge; that after the execution of the Will, the testament was handed over by Savitri to P.W.2 asking him to keep it in his custody with a request

to hand over the same to her husband if anything happened to her; that 10 or 12 days after the death of Savitri, P.W.2 according to her request,

handed over the testament to P.W.1; that Savitri has executed the Will in respect of the property exclusively belonged to her; that it is pertinent to

note that she has not excluded any one of her heirs including her daughter who deserted her; that the first defendant has filed a consent affidavit for

grant of probate in favour of his father, the plaintiff herein; that the second defendant who knew fully well that her mother has executed Ex.P1 Will

has come with a false defence to defeat the genuine document; that Ex.P1 Will is natural; that there are no suspicious circumstances surrounding

the making of the Will; that the propounder of the Will did not participate or did not have any prominent role either in the preparation or the

execution of the Will; and thus the plaintiff has proved the execution and attestation of Ex.P1 Will and hence probate has got to be granted as

prayed for.

Vehemently opposing all the contentions of the plaintiffs side, the learned Counsel appearing for the second defendant would submit that Mrs.

Savitri did not execute any Will during her lifetime; that there was no occasion for her to execute a Will; nor was she having any thoughts to

execute a Will; that she was 51 years at the relevant time; that she was not suffering from any ailment; that the plaintiff has admitted that she died

out of heart attack and prior to that she was hale and healthy except for certain occasional and normal ailments; that the plaintiff has stated that her

wife could have executed Ex.P1 Will in view of the desertion by his daughter, but this reason for execution of the Will cannot be accepted in view

of his further evidence that at no point of time his wife expressed him about her dissatisfaction or about the desertion by her daughter and her

intention to write any Will; that at the time of execution of the Will, the plaintiff and the testatrix were living with their children; that while the testatrix

was living with her husband cordially and maintaining a good relationship, there was no occasion or reason for her to execute a Will like Ex.P1;

that according to the plaintiff the Will was executed on 29-12-1992 and Mrs. Savitri died on 5-2-1994 and thus she has lived for more than one

year; that according to the plaintiff his wife did not inform him about the execution of the Will till her lifetime; which is highly unbelievable; that the

plaintiff is unable to give any strong or justifiable reason which impelled Savitri to write a Will in the absence of her husband and to keep the same

secretly for more than one year; that the very reading of the evidence of P.W.2 would reveal that he could not have been present on the alleged

date of execution viz., 29-12-1992; that admittedly both the attesting witnesses were the close friends and classmates of P.W.1; that the case of

the plaintiff that both the attesting witnesses though they were his close friends and classmates, did not inform to him about the execution of the Will

for a long time till the death of Savitri, though he had several meetings with the attesting witnesses, is highly unbelievable; that P.W. 1 has

categorically admitted that the date of the Will has been written in ink at the end of Ex.P1 Will and the same has not been attested and he did not

know about the details regarding the place of execution of the Will and also as to who prepared, drafted and typed the Will; that one of the strong

circumstances that the Wilt could not have been executed on 29-12-1992 is that the plaintiff would say that he has no idea as to whether he was

available at Madras on the said date and that P.W.2 would state that he did not know as to who has written the date in the last page of Ex.P1 Will

and he did not notice whether the said date was written in Ex.P1 when he attested the same and he did not know whether 29th December was a

working day or not; that P.W. 1 has categorically admitted that at the time of execution of Ex.P1 Will his wife had worn jewels but no recital is

found in the testament in respect of the jewels nor has he got any explanation to offer; that a reading of the testament would reveal that the

deceased had made a bequest in respect of S.B. Account with Canara Bank, Kellys Branch and amounts deposited with JanasakthI Benefit Fund,

Mogappair and Sriram Hire Purchase Eund and Purasawalkam Permanent Fund Ltd.; that the plaintiff has also averred the same in para 8 of the

plaint, but contrary to the recital in the testament and the averment in the plaint, the plaintiff has stated that to his knowledge, she had neither

deposited any amounts individually nor she has handed over any certificate in respect of the same; that Mrs. Savitri was not legally qualified and

hence it is clear that Ex.P1 Will should have been prepared and drafted by a person conversant with law, but either P.W. 1 or the attesting witness

P.W.2 could say how the Will came into existence; that from the evidence of the plaintiff, it would be clear that since his daughter married a person

of her own choice, he has disapproved the same and all the above would go to show that Ex.P1 Will has come into existence after the death of

Savitri; that it was one prepared on a blank paper signed by his wife; that the signature of the friends of the plaintiff viz., Manmohan and

Sivashankaran were obtained in the fabricated Will and thus Ex.P1 Will was prepared with the connivance of P.W.2 and the other attesting

witness; that the plaintiff has examined only one of the attesting witnesses viz. P.W.2 whose evidence is highly unbelievable and is not free from

doubts and suspicion and under such circumstances the plaintiff should have examined the second attesting witness, but he has failed to do so; that

P.W. 1 has admitted that the contents of Ex.P1 Will and also the contents of the docket of Ex.P1 Will must be from one and the same machine

and his signature is found in the docket of Ex. P1 and this would reveal that for the purpose of initiating the proceedings to obtain the probate the

plaintiff prepared Ex.P1 Will with the connivance of two of his friends who were the attesting witnesses; that Ex.P1 Will is a fabricated one; that

insofar as the permanent benefits are concerned, they are not bequeathable and the testatrix who was employed at the time of execution of the Will

was in service in H.R. & C.E. Department and hence she should have nominated a person entitled to the benefits of the same; and thus there is no

possibility of writing a Will making a bequest in that regard, which is another circumstance indicating the falsity of the Will; and thus the plaintiff has

not proved Ex.P1 Will and hence the request of the plaintiff has got to be rejected.

Admittedly the plaintiff and the testatrix Savitri were living at the relevant time as husband and wife. It is not the case of the plaintiff that there

was any misunderstanding or strained relationship between the plaintiff and his wife, the testatrix. Hence the cordial relationship should have been

maintained between them, and one should have reposed full confidence on the other, From the evidence of P.W.1, the plaintiff herein. it would be

clear that they had number of deposits in Banks and financial institutions including Purasawalkkam Parmanent Fund Ltd. Therefore, it is highly

unbelievable and improbable that a wife suddenly executed a Will without the knowledge of her husband, and suppressing the said fact for a period

more than one year till her lifetime.

It is an admitted position that the testatrix was 51 years old at the time of the alleged execution of Ex.P1 Will. According to the plaintiff, prior

to her fatal heart attack, the testatrix was hale and healthy except certain occasional and normal ailments. She has never informed her husband her

desire to execute a Will. Thus there was no reason or compelling circumstances for her to write a Will. The contention of the plaintiffs side that the

desertion by her daughter was the reason for the execution of the Will by, the wife is not convincing, since the plaintiff has admitted that the testatrix

never expressed her dissatisfaction about the desertion by her daughter. There is a recital in Ex.P1 wherein it is stated that necesary provisions

have to be made for the marriage of her daughter. According to the plaintiff and the attesting witness P.W.2, the daughter of the testatrix deserted

her parents even before the execution of the Will and the desertion was the reason for the execution of the same. But it is found in Ex.P1 testatment

that the testatrix owned jewels at the time of the execution of the Will and has handed over certainjewels to her daughter that day of the execution.

Had the testatrix executed a Will as contended by the plaintiffs side and as found under Ex.P1, her daughter Geetha should have lived with the

testatrix at the time of the execution of the Will.

Admittedly both the attesting witnesses are close friends and classmates of the plaintiff. If really the intention of the testatrix was to execute a

Will without the knowledge of her husband and to keep him uninformed of the same, she would not have chosen the close friends of her husband

to attest the document, and since she was employed in a Government Department she could have chosen two friends of her choice. In order to

prove the testament, the pro-pounder has examined one of the attesting witnesses viz. P.W.2, whose evidence does not inspire the confidence of

the Court. The answers given by P.W.2 during his cross-examination would make it doubtful whether he would have been present in the house of

the testatrix on 29-12-1992 at all. The witness could say that he could not remember what the day of the week it was or whether it was a working

day for the testatrix and that he went to her house on the 29th evening though she did not specify the date or the time at which he should come to

her house and he could not say whether he went on the said date as usual. While the evidence of P.W.2 is not free from doubts and suspicion, a

duty is cast on the plaintiff to examine the other attesting witness, which he has failed to do. The plaintiff has not given any explanation why he has

not examined the other attesting witness.

It is highly doubtful that P.W.2 who calls himself to be a close friend and classmate of P.W. 1 could have been in custody of Ex.P1 Will for a

long time even without informing the execution of the testament to his friend P.W.1. Admittedly the testatrix was not legally qualified and hence

Ex.P1 Will should have been drafted and prepared by a person conversant with law. But P.Ws. 1 and 2 could not say by whom it was drafted and

prepared. P.W. 1 is unable to say whether he was available at Madras on 29-12-1992, the date of execution of Ex.P1 Will. P.W.1 has

categorically admitted thatP.W.2 handed over the Will executed by his wife containing four sheets. A perusal of Ex. P1 would clearly reveal that it

contains four sheets including the docket sheet. It is seen from Ex.P1 that the date 29-12-1992 has been inserted by pen, but P.W.2 has stated

that he did not know as to who has written the date in the last page of Ex.P1 Will and that he did not notice whether the said date was written in

Ex.P1 when he attested the same. All would make it doubtful whether Ex.P1 Will came into existence on 29-12-1992 as alleged by the plaintiff.

Regarding the movable properties it is stated in Ex.P1 Will that the testatrix owned certain deposits with Janasakthi Benefit Fund. Mogappalr

and Sriram Hire Purchase Fund Ltd. and Purasawalkam Permanent Fund Ltd. besides recurring deposit also. It is stated in para 8 of the plaint that

the testatrix has bequeathed the following movable items :

(1) Service and Pension benefits from H.R. & C.E., Madras, where she employed;

(2) S.B. A/c. No. 8307 with Canara Bank, Kellys Branch;

(3) Amounts deposited with Janasakthi Benefit Fund, Mogappair, Madras;

(4) Deposits with Sriram Hire Purchase Fund Ltd. and Purasawakkam Permanent Fund Ltd. and also Recurring deposit.

Contrary to the recitals in Ex.P1 Will and the averments in the plaint, the plaintiff as P.W. 1 has deposed that to his knowledge his wife the testatrix

had not deposited amounts individually and the statement made by his wife in Ex.P1 Will to the effect that she had deposits in Janasakthi Benefit

Fund, Mogappair, Sriram Hire Purchase Fund Ltd. and Purasawakkam Permanent Fund Ltd. is not correct. The plaintiff has categorically

admitted that his wife owned jewels at the time of the execution of the testament. As per the recital found under Ex.P1 testatment, only certain

jewels were given to the daughter Geetha on the date of the execution of the Will. Apart from that the testatrix should have worn jewels at the time

of her death. The testament does not contain any recital regarding the disposition of the jewels retained by the testatrix. The plaintiff has also not

made any averment in the plaint nor has he tendered any explanation in respect of the jewels retained by his wife at the time of her death. But on

the contrary there is a recital in the testament stating that the testatrix did not possess any other movable property except those mentioned in the

Will. If the testatrix had executed a Will as found under Ex.P1 and as contended by the plaintiffs side, she would have certainly made mention in

Ex.P1 about the jewels retained by her and should have made disposition of the same. This is one of the strong circumstances which would

indicate that Ex.P1 Will could not have come into existence as alleged by the plaintiff. From the evidence of P.W.2 it would be clear that he is very

much interested in P.W.1. While the evidence of P.W.2 is not free from doubt and suspicion, the plaintiff should have examined the second

attesting witness to the document. The plaintiff has not tendered any explanation for the non-examination of the other attesting witness. Under the

aforestated circumstances the contention of the plaintiffs side that there were no suspicious circumstances either in the preparation or execution or

attestation of the document, and thus it is a genuine one cannot be countenanced. The Supreme Court has held in a decision reported in Smt.

Jaswant Kaur Vs. Smt. Amrit Kaur and Others, as follows (at P. 77 of AIR) :

In cases where the execution of a Will is shrouded in suspicion, its proof ceased to be a simple lis between the plaintiff and the defendant. What,

generally is an adversary proceeding becomes in such cases a matter of the Court''s conscience and then the true question which arises for

consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly

executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing

explanation of the suspicious circumstances surrounding the making of the Will.

In Kalyan Singh Vs. Smt. Chhoti and Others, , the Supreme Court has held thus (at Pp. 402-03 of AIR) :

A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the

circumstances in which it was executed. It is therefore, essential that trustworthy and unimpeachable evidence should be produced before the

Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be

determined merely by considering the evidence produced by the propounder. In order to Judge the credibility of witnesses and disengage the truth

from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought

out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into the

surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by

the party.

Applying the above tests given by the Supreme Court, it has to be necessarily stated that the propounder of the Will has neither removed nor

dispelled anyone of the abovestated suspicious circumstances. After careful consideration of the rival submissions and the evidence adduced, the

Court is of the view that Ex.P1 Will could not have come into existence on 29-12-1992, as contended by the plaintiff''s side and that Ex.P1

document cannot be called as a genuine document. It is true that any and every circumstance is not a suspicious circumstance. But in the instant

case, all the aforestated circumstances are suspicious circumstances, since they are not normal and they are not normally expected in the said

situation in which the testament is alleged to have been executed by the testatrix, and what is not expected of a person like the testatrix. For the

reasons stated and discussions made above, it has to be held that the plaintiff has not proved Ex.P1 Will and hence he is not entitled to the relief as

asked for.

In the result, this suit is dismissed. Considering the relationship between the parties, there will he no order as to the costs.